Dentist Forced Patient To Sign Away Future Copyright On Any Online Review; Then Billed Him $100/Day For Negative Reviews

from the copyright-abuse dept

We've talked about Medical Justice a few times. This is the highly questionable outfit that gives doctors and dentists forms that these medical professionals then require patients to sign in order to get treated. The forms require the patients to pre-emptively hand over the copyright on any future reviews they might write about that medical professional. The idea is that if the doctor or dentist doesn't like the review, they can then just use the DMCA to take it down, claiming that the review infringes on their copyright. Yes, this is incredibly sleazy. This clearly has nothing to do with copyright, but rather it's a use of copyright law to try to censor criticism. There are both ethical and legal problems with this... and the legal problems are about to be discussed in court.

Public Citizen has filed a class action lawsuit against a New York dentist, Stacy Makhnevich, who not only used the Medical Justice forms, but then sent one of her patients invoices, supposedly billing him $100 per day for having posted comments about her online. As Paul Alan Levy explains:
Our individual client, Robert Lee, had a bad experience, not with Makhnevich’s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance.  After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase.  Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal.  Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement.  Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.
A few interesting things come out in the lawsuit. First, the fact that both Yelp and DoctorBase defied the DMCA takedowns. Both companies deserve kudos for that. Standing up to bogus DMCA takedowns is pretty rare these days, because the risk of getting roped into a costly lawsuit is just too high. In this case, the fact that there had been so much news about Medical Justice and it's questionable concept, and both Yelp and DoctorBase were aware of this earlier, certainly helped. Still, standing up to such threats deserves praise.

Second, the lawsuit notes that not only is this copyright abuse, but the DMCA takedown notices appear to violate HIPAA -- the federal Health Insurance Portability and Accountability Act -- which is supposed to guarantee privacy for patient info.
In September, 2011, on the letterhead of Aster Dental, a member of Dr. Makhnevich’s staff sent takedown letters under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3), to Yelp and to DoctorBase, asserting that Dr. Makhnevich owned the copyright in Lee’s Commentary pursuant to the Agreement. Defendants warned Yelp and DoctorBase that, if they did not remove the posts immediately, they would lose the immunity that the DMCA otherwise provides Internet Service Providers against monetary liability for copyright infringement. In violation of HIPAA, these takedown notices disclosed plaintiff’s height, weight and birth date, as well as his picture and his home address
The lawsuit also makes the claim that these comments, even if the copyright on them has been assigned, would still be protected as fair use. But, more importantly, it argues that these agreements in the first place constitute "copyright misuse" noting that the agreements:
constitute unclean hands and, with respect to such purported acquisition and assertion, constitute copyright misuse in light of the means by which defendants purportedly acquire the copyrights and because the purpose of such acquisition and assertion of copyright is to suppress truthful commentary concerning defendants and matters of public concern.
No matter what, this should be an interesting lawsuit to follow. As Levy explains, beyond the legal arguments, there is an important public policy aspect to this lawsuit:
The purpose of copyright law is to encourage creative expression by providing a temporary monopoly (sadly, less and less temporary) that enables those whose expression is marketable to reap financial rewards for their work. At the same time, copyright law avoids giving any monopoly on facts or ideas. Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted. The Medical Injustice agreements allow professionals who use them to suppress the underlying opinions and facts, not to reap financial rewards from the expression and not to encourage further creativity. This is a misuse of copyright law and in our view it needs to be stopped.
However, from a future policy perspective, it appears that this lawsuit has already been a win. Within a day of the lawsuit being filed, Medical Justice has announced that it's retiring the agreement... and that it probably should have earlier. It also claims that it's telling doctors to stop using them. We'll see if that actually happens... and if anyone else jumps into the fray instead.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    xenomancer (profile), Dec 1st, 2011 @ 8:43am

    He Didn't Follow the Rules

    Rule #1: You do not talk about Stacy Makhnevich
    Rule #2: You do not talk about Stacy Makhnevich
    Rule #3: If you aren't satisfied, you must pay; and you will be unsatisfied
    Rule #4: Stacy Makhnevich owns your rights
    Rule #5: Stacy Makhnevich owns your neighbor's rights
    ...
    Rule #33: Stacy Makhnevich owns your dog's rights
    Rule #34: Barbara Streisand
    Rule #35: Stacy Makhnevich owns your cat's rights
    ...
    Rule #101: AVOID Stacy Makhnevich AT ALL COSTS, except those costs that Satcy Makhnovich has earned when she sues you; you will be paying those off for a long, long time

     

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  2.  
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    Sarah, Dec 1st, 2011 @ 9:03am

    HORRIFYING.

    This is the first I've heard of this company -- I'm so glad to hear they're withdrawing their bogus "agreement." But you're right -- what shady outfit will be the next to step in and try to pretend that criticism has anything at all to do with copyright infringement? Yikes.

     

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  3.  
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    TheStupidOne, Dec 1st, 2011 @ 9:05am

    If I ever ...

    If I ever go to any medical office and am asked to sign something like this 'agreement' I'll write in big bold letters "FUCK YOU" on that form, then walk out the door and immediately write a review on Yelp and DoctorBase

     

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  4.  
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    Joe Publius (profile), Dec 1st, 2011 @ 9:26am

    I don't see what the hubbub is

    It's in the Oath: Chapter 3, §103.3.4.A.e.$

    "Know that opinions from your charges and patients are duly yours to own in perpituity throughout the universe."

     

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  5.  
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    fogbugzd (profile), Dec 1st, 2011 @ 9:29am

    >>If I ever go to any medical office and am asked to sign something like this 'agreement' I'll write in big bold letters "FUCK YOU" on that form, then walk out the door and immediately write a review on Yelp and DoctorBase

    In this particular case the patient was in severe pain. Trying to get into another dentist would probably have taken at least another day of enduring the pain. In effect the patient was under duress and had no real choice but to sign the agreement.

    What I might have tried to do was to write under the signature something like "signed under duress and protest." The clerk could have refused to accept it, but chances are pretty good that they would have gone ahead an taken it unless the patient had made a huge fuss about signing it initially.

     

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  6.  
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    Anonymous Coward, Dec 1st, 2011 @ 9:53am

    Looks like someone is going to learn about Ms Streisand pretty soon.

     

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  7.  
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    ScytheNoire, Dec 1st, 2011 @ 10:02am

    Working as intended

    Copyright is completely working as intended. Remember, Copyright is a tool for censorship and monopolies, that's it.

     

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  8.  
    identicon
    Rei, Dec 1st, 2011 @ 10:04am

    http://doctorbase.com/dr/31127

    Maybe it's just me but I no longer found his review posted on Doctorbase.com

    I wonder if they caved in anyway?

     

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  9.  
    identicon
    Great Dental Websites, Dec 1st, 2011 @ 10:28am

    Bad Policy

    We've had lots of custoemrs ask about similar types of situations. I just reposted this article on some dental forums because it's a lesson on how a bad policy can go from bad to disasterous.

    I just cannot imagine potential patients looking at this article and even considering this dentist.

     

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  10.  
    identicon
    Loki, Dec 1st, 2011 @ 10:29am

    Re:

    Pain or no pain, I would NEVER trust a doctor or dentist who wanted me to sign one of these. All I would see is big letters saying: "I CAN'T BE TRUSTED TO DO MY JOB RIGHT."

    Everyone who serves customers has someone, somewhere who is going to have a bad experience with them. A good practitioner will get a lot more referrals from satisfied customers then they will lose from the few who have a negative experience.

     

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  11.  
    identicon
    Anonymous Coward, Dec 1st, 2011 @ 10:51am

    Re:

    Look on the right hand side it's the 3rd review.

     

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  12.  
    identicon
    Bengie, Dec 1st, 2011 @ 10:56am

    Re: If I ever ...

    Ever wonder if you just write "f*ck you" on the signature and they took it, if it would even stand up in court?

    I could see the person at the front desk just glossing over to see if something was put into the field, not what was put in.

     

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  13.  
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    TheStupidOne, Dec 1st, 2011 @ 11:12am

    Re: Re:

    Yes, also I've found that I trust people who do mess up and actually make it right more than those that just get it right. I always read reviews to find out how the person/business handled complaints more so than to find out if some people are happy with them.

     

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  14.  
    identicon
    Anonymous Coward, Dec 1st, 2011 @ 12:13pm

    Re:

     

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  15.  
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    Paul Alan Levy (profile), Dec 1st, 2011 @ 12:19pm

    Response to Rei

    The review is still there -- see http://doctorbase.com/blog/makhnevich

     

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  16.  
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    Anonymous Coward, Dec 1st, 2011 @ 1:10pm

     

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  17.  
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    The Devil's Coachman (profile), Dec 1st, 2011 @ 5:30pm

    Did this practitioner have a large yellow beak and webbed feet?

    I suspect so.

     

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  18.  
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    That Anonymous Coward (profile), Dec 1st, 2011 @ 5:35pm

    I wonder how this poor doctor is going to pay off medical school. Violating HIPAA is pretty much the nail in the coffin.
    There are happy fines and things, plus I am willing to hazard the idea that this will not be the first and only time they were lax in policy. Of course the fines are capped at like 1.5 million a year, but I have to imagine that the lawsuits form patients and them leaving might hurt the business more. As they seemed unable to handle the simple task of getting paid by an insurance carrier by providing the proper paperwork, this does not bode well for their ability to follow the law.

    Funny, if I were a cynic this would be the time to point out that copyright being introduced to this industry has disastrous results, and we should examine the use of copyrights more carefully.

     

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  19.  
    identicon
    pr, Dec 1st, 2011 @ 5:43pm

    Wouldn't have seemed so bad

    On doctorbase, there are three reviews total. Two are glowing, praising the dentist for high quality of service. Then there's one person hacked off about the price. Followed by a very detailed rebuttal by the office manager.

    So given that I would conclude that this is a posh service, and one patient seemed to have wanted something less expensive. All in all, a fairly favorable impression of the dentist. Not somebody I would go to, but then I'm a cheapskate, too.

    So now, after the publicity generated by the lawsuit, this looks like the dentist from Hell. Somebody I wouldn't want to be within a mile of. I think I'll cross the street if I ever need to walk past the Chrysler building.

     

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  20.  
    identicon
    dr Evil, Dec 1st, 2011 @ 9:58pm

    copyright

    so what if the Doctor has copyright? The patient has fair use, and took advantage of it.

     

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  21.  
    identicon
    Justawizeguy, Dec 1st, 2011 @ 10:49pm

    Dentist Forced Patient To Sign Away Future Copyright Ha

    I usually strike out the parts of the agreement that I do not like. The office staff is to busy to verify and notice it. Once the work is done (IMHO) how can a Dr. argue that was not the agreement? His/her preforming the job after the fact is a quasi acceptance of the terms...

     

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  22.  
    identicon
    Paul Keating, Dec 2nd, 2011 @ 4:03am

    Medical Justice - the "New" Agreement

    Here is a new twist in the revised agreement :-)

    "1. General. You agree that Dentist is a trained professional who (a) has undertaken substantial effort and investment in the pursuit of education and the development of skills and the development and marketing of Dentist's business, and (b) is entitled to transfer to Dentist's heirs and assigns the benefits derived from such substantial investments.

    2. Forbearance. You agree that absent entering into this agreement recognizing important intellectual property rights, Dentist would not have undertaken the substantial investments noted above.

    3. Retention of Copyright and Grant of Limited License. You hereby agree that the work performed by Dentist is a "Work" of art and thus covered by US copyright laws. As the author of the work and owner of all copyright interests, Dentist is providing you with a limited right only to use and publicly display the Work. This limited license does not grant you the right to modify or improve the Work or to create derivative material(s) based thereon. You are therefor prohibited from permitting any person (or entity)other than Dentist, or Dentist's permitted heirs and assigns, from performing any modifications or improvements thereto. Please note that the terms "modification" and "improvement" include, without limitation, cleaning, the taking of molds or models, any of which may alter, remove or reposition any portion of the Work. You acknowledge that any payment or other consideration provided by you or on your behalf to Dentist is merely a license fee payable in exchange for the limited license provided herein.

    5. Enforcement. You are advised that any attempt to modify or improve in contravention of the forgoing limited license will be considered an intentional infringement punishable by damages of up to $100,000 per infringement and/or one (1) year of imprisonment. You are further cautioned that any infringement will be reported to our primary enforcement agent (Right Haven)as well as appropriate governmental authorities, including ICE for further enforcement."

    6. Closing. We value our close personal relationship and look forward to being able to serve you."

     

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  23.  
    icon
    The Devil's Coachman (profile), Dec 2nd, 2011 @ 8:34am

    Re: Medical Justice - the "New" Agreement

    I have never seen this kind of gobbledygook legalese on any paperwork I ever signed for any medical professional I consulted. If I were to be presented with such a form, that would terminate the engagement of their services immediately. In other words, I'd fire their lame asses.

     

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  24.  
    identicon
    unonymous, Dec 2nd, 2011 @ 8:13pm

    kk

     

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  25.  
    identicon
    unonymous, Dec 2nd, 2011 @ 8:15pm

    The first who must be pinished is Medical Justice company for providing this kind of agreements. If such agreement wouldn't be available this wouldn't happened.

     

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  26.  
    identicon
    dentists in burbank, Jan 29th, 2012 @ 10:29am

    Yeah good read.

     

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  27.  
    identicon
    Dentist Marlboro, Feb 21st, 2012 @ 1:12am

    Dentist Marlboro

    This is really good posting.You have good knowledge to dental.Your creation will be helpful for future.Thanks for sharing it.

     

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  28.  
    identicon
    Dentist Marlboro, Feb 21st, 2012 @ 1:17am

    Dentist Marlboro

    This is really good posting.You have good knowledge to dental.Your creation will be helpful for future.Thanks for sharing it.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    diana, May 7th, 2012 @ 9:37pm

    Try this one on for size. True Story

    Try having dentist that screw up and split a tooth while making a filling. Then having their 'assistant' run off for a liability waver then covering the peice of paper with her arm not letting you see the title until 'after' you signed it. Stating its so they can bill your insurance.

     

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  30.  
    identicon
    diana, May 7th, 2012 @ 9:39pm

    Re: Try this one on for size. True Story

    Btw this girl has the mentality of a child and was ambushed by the doctors at that office as they refused to let her actually see the paper itself.

     

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  31.  
    identicon
    diana, May 7th, 2012 @ 9:41pm

    Re: Re: Try this one on for size. True Story

    oh almost forgot the most important part, she was afraid that they would refuse to let her leave if she did not sign the documents without allowing her 'escourt' to read it.

     

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  32.  
    identicon
    Igor, Jun 1st, 2012 @ 6:07am

    So blatant

    I think any attempt to stop a customer write a bad review will be defeated. There are so many venues that accept reviews, many of them won't recognize any kind of copyright or any other agreements. As for us, we actually love bad reviews cause they allow to see what's wrong and get this corrected. Many times, a customer would go back and change a 1-star review to a 5-star one. New York Alcohol & Drug Addiction Treatment Rehab, (212) 380-3841

     

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  33.  
    identicon
    Charles, Oct 10th, 2012 @ 10:40pm

    As a dentist cbd melbourne, I feel that the dentist could have handled the situation better and more professional by being subtle. Now his reputation is tarnished.

     

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  34.  
    identicon
    Chris, Jul 30th, 2013 @ 11:11pm

    Bad Practice

    I don't agree with leveraging patients into signing their rights away. If fact I abhor the thought. However, I also think that we are all trying to find our way around in this crazy new social media run world... so there will be mistakes; some bad and some much worse.

     

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  35.  
    identicon
    Cinna the Family Dentist, Nov 26th, 2013 @ 1:23am

    If I were probably the patient, I would have endured the pain to find another suitable dentist when the initial one I choose shoves a paper to sign in my face. That could just mean that either they are bad. Or they are worst. Of course they would know patients will right something negative about them if they aren't good so they probably just prepared for that. Taking advantage of the patient in pain, so bad.

     

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  36.  
    identicon
    Endodontics dentist, Dec 16th, 2013 @ 4:36am

    Reply:

    Glad to have this information. its really an pleasure to post view regards to this. Thanks for sharing informative article.

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    mileylegal (profile), Dec 19th, 2013 @ 8:36pm

    Dental review

    Medical justice should not be taken lightly because it is a serious matter. The fine looks good because it is a serious matter when it comes to the reputation of a dental clinic.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Oakville dentist, Feb 11th, 2014 @ 4:18am

    Horrific

    I'm just horrified. What in the world were they thinking? How can something like happen in the first place? Common sense people, common sense!

     

    reply to this | link to this | view in thread ]


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